EXECUTION COPY
EXHIBIT 99.10
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GSAA HOME EQUITY TRUST 2007-3
ASSET-BACKED CERTIFICATES
SERIES 2007-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2007-3
as Assignee
and
FIRST NATIONAL BANK OF NEVADA,
as Responsible Party
and as acknowledged by
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer
Dated as of
February 23, 2007
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 23rd day of
February, 2007 (this "Assignment Agreement"), among First National Bank of
Nevada, a national banking association (the "Responsible Party"), U.S. Bank
National Association, not in its individual capacity, but solely as trustee
(in such capacity, the "Trustee") on behalf of GSAA Home Equity Trust 2007-3
(the "Assignee") and GS Mortgage Securities Corp., a Delaware corporation (the
"Assignor" or "Depositor"), and as acknowledged by Xxxxx Fargo Bank, National
Association, as master servicer (in such capacity, the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the Responsible
Party have entered into the Second Amended and Restated Master Mortgage Loan
Purchase and Interim Servicing Agreement, dated as of May 1, 2006 (the "Sale
Agreement"), pursuant to which the Responsible Party sold to GSMC certain
mortgage loans on a servicing-released basis attached as an exhibit to the
Master Servicing and Trust Agreement (as defined below);
WHEREAS, GSMC has assigned and conveyed certain mortgage loans (the
"Mortgage Loans"), which Mortgage Loans are subject to the provisions of the
Sale Agreement, to the Assignor pursuant to an Assignment, Assumption and
Recognition Agreement, dated as of February 23, 2007 (the "GSMC Assignment
Agreement");
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor the Mortgage Loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement, which Mortgage Loans are listed on
the mortgage loan schedule attached as Exhibit 1 hereto (the "Mortgage Loan
Schedule"); and
WHEREAS, pursuant to a Master Servicing and Trust Agreement, dated as of
February 1, 2007 (the "Trust Agreement"), among the Depositor, U.S. Bank
National Association, as Trustee and as a custodian, Deutsche Bank National
Trust Company, as a custodian, The Bank of New York Trust Company, National
Association, as a custodian, and Xxxxx Fargo Bank, National Association, as
Master Servicer and securities administrator, the Assignor will transfer the
Mortgage Loans to the Assignee, together with the Assignor's rights under the
Sale Agreement, to the extent relating to the Mortgage Loans (other than the
rights of the Assignor to indemnification thereunder).
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and to
the Mortgage Loans and the GSMC Assignment Agreement (including without
limitation the rights of GSMC under the Sale Agreement, to the extent assigned
to the Assignor under the GSMC Assignment Agreement) from and after the date
hereof, and the Assignee hereby assumes all of the Assignor's obligations under
the Sale Agreement, to the extent relating to the Mortgage Loans from and after
February 23, 2007, and the Responsible Party hereby acknowledges such assignment
and assumption and hereby agrees to the release of the Assignor from any
obligations
under the Sale Agreement from and after February 23, 2007, to the extent
relating to the Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the date of the Sale
Agreement.
(c) The Responsible Party and the Assignor shall have the right to
amend, modify or terminate the Sale Agreement without the joinder of the
Assignee with respect to mortgage loans not conveyed to the Assignee
hereunder, provided, however, that such amendment, modification or termination
shall not affect or be binding on the Assignee.
2. Accuracy of the Sale Agreement. The Responsible Party and the
Assignor represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 is a true, accurate and complete copy of the Sale Agreement, (ii)
the Sale Agreement is in full force and effect as of the date hereof, (iii)
except as previously disclosed in the GSMC Assignment Agreement, the Sale
Agreement has not been amended or modified in any respect and (iv) no notice
of termination has been given to the Responsible Party under the Sale
Agreement. The Responsible Party in its capacity as seller under the Sale
Agreement, further represents and warrants that the representations and
warranties contained in Sections 7.01 and 7.02 of the Sale Agreement are true
and correct as of the Closing Date (as such term is defined in the Sale
Agreement).
3. Recognition of Assignee.
From and after the date hereof, the Responsible Party shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Mortgage Loans. It is the intention
of the Assignor, the Responsible Party and Assignee that the Sale Agreement
shall be binding upon and inure to the benefit of the Responsible Party and
the Assignee and their successors and assigns.
4. Representations and Warranties of the Assignee. The Assignee hereby
represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that it
is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the
Responsible Party other than those contained in the Sale Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it is
duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Sale Agreement.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by
it and (assuming due authorization, execution and delivery thereof by each of
the other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor hereby
represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full power and authority (corporate and other) to enter into and
perform its obligations under the Sale Agreement and this Assignment
Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed and
delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium, or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(c) No Consent. The execution, delivery and performance by the Assignor
of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate
action on the part of the Assignor; neither the execution and delivery by the
Assignor of this Assignment Agreement, nor the consummation by the Assignor of
the transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of the governing documents of the
Assignor or any law, governmental rule or regulation or any material judgment,
decree or order binding on the Assignor or any of its properties, or any of
the provisions of any material indenture, mortgage, deed of trust, contract or
other instrument to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 5 shall survive delivery of the respective mortgage loan
documents to the Assignee or its designee and shall inure to the benefit of
the Assignee and its assigns notwithstanding any
restrictive or qualified endorsement or assignment. Upon the discovery by the
Assignor or the Assignee and its assigns of a breach of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties to this Assignment Agreement, and
in no event later than two (2) Business Days from the date of such discovery.
It is understood and agreed that the obligations of the Assignor set forth in
Section 6 to repurchase a Mortgage Loan constitute the sole remedies available
to the Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 5, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
6. Repurchase of Mortgage Loans. Upon discovery or notice of any breach
by the Assignor of any representation, warranty or covenant under this
Assignment Agreement that materially and adversely affects the value of any
Mortgage Loan or the interest of the Assignee therein (it being understood
that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of
the Assignee therein if the Assignee incurs a loss as a result of such defect
or breach), the Assignee promptly shall request that the Assignor cure such
breach and, if the Assignor does not cure such breach in all material respects
within sixty (60) days from the date on which it is notified of the breach,
the Assignee may enforce the Assignor's obligation hereunder to purchase such
Mortgage Loan from the Assignee at the Repurchase Price as defined in the Sale
Agreement.
In the event the Responsible Party has breached a representation or
warranty under the Sale Agreement that is substantially identical to, or
covers the same matters as, a representation or warranty breached by the
Assignor hereunder, the Assignee shall first proceed against the Responsible
Party. If the Responsible Party does not within sixty (60) days after
notification of the breach, take steps to cure such breach (which may include
certifying to progress made and requesting an extension of the time to cure
such breach, as permitted under the Sale Agreement) or purchase the Mortgage
Loan, the Assignee shall be entitled to enforce the obligations of the
Assignor hereunder to cure such breach or to purchase the Mortgage Loan from
the Trust. In such event, the Assignor shall succeed to the rights of the
Assignee to enforce the obligations of the Responsible Party to cure such
breach or repurchase such Mortgage Loan under the terms of the Sale Agreement
with respect to such Mortgage Loan. In the event of a repurchase of any
Mortgage Loan by the Assignor, the Trustee shall promptly deliver to the
Assignor or its designee the related Mortgage File and shall assign to the
Assignor all of the Assignee's rights under the Sale Agreement, but only
insofar as the Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to
oversee compliance hereof, or to take notice of any breach or default thereof.
7. Termination; Optional Clean-Up Call.
In connection with the Trust Agreement, the Master Servicer hereby
agrees to the following obligations described below. For purposes of this
Section 7 only, any capitalized term
used but not defined in this Assignment Agreement has the same meaning
assigned thereto in the Trust Agreement.
In the event that a Person specified in Section 11.01 of the Trust
Agreement chooses to exercise its option set forth therein to purchase the
Mortgage Loans and REO Properties or to conduct an Auction Call for such
property of the Trust Fund, as the case may be, by no later than the 10th day
of the month of the final distribution, such Person shall notify the
Depositor, the Trustee and the Securities Administrator of the final
Distribution Date and of the applicable purchase or sale price of the Mortgage
Loans and REO Properties determined and in the manner as provided in the Trust
Agreement.
In the event the Mortgage Loans and REO Properties are purchased or sold
pursuant to Section 11.01 of the Trust Agreement, the Master Servicer shall
remit to the Securities Administrator the applicable Termination Price on the
Remittance Date immediately preceding the applicable final Distribution Date.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Securities Administrator and the Custodians of a Request for Release therefor,
the Master Servicer shall direct the Custodians to release to the Master
Servicer or its designee the Custodial Files for the Mortgage Loans.
8. Continuing Effect. Except as contemplated hereby, the Sale Agreement
shall remain in full force and effect in accordance with its terms.
9. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT
AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
10. Notices. Any notices or other communications permitted or required
hereunder or under the Sale Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to:
(a) in the case of the Responsible Party,
First National Bank of Nevada
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Secondary Marketing
With a copy to:
First National Bank of Nevada
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: General Counsel
or such other address as may hereafter be furnished by the Responsible Party;
(b) in the case of the Master Servicer,
Xxxxx Fargo Bank, National Association
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAA 2007-3
Or in the case of overnight deliveries:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAA 2007-3
or such address as may hereafter be furnished by the Master Servicer;
(d) in the case of the Trustee or the Assignee,
U.S. Bank National Association 000 Xxxx Xxxxxx,
00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: GSAA
Home Equity Trust 2007-3 Tel: (000) 000-0000
or such other address as may hereafter be furnished by the Trustee or
Assignee; and
(e) in the case of the Assignor,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
11. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
12. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Sale Agreement.
13. Third Party Beneficiary. The parties agree that the Master Servicer
is intended to be, and shall have the rights of, a third party beneficiary of
this Assignment Agreement.
14. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
U.S. Bank, not individually or personally but solely on behalf of GSAA Home
Equity Trust 2007-3, as the Assignee, in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements by U.S. Bank is made and intended for the purpose
of binding only the GSAA Home Equity Trust 2007-3, (iii) nothing herein
contained shall be construed as creating any liability for U.S. Bank,
individually or personally, to perform any covenant (either express or
implied) contained herein, and all such liability, if any, is hereby expressly
waived by the parties hereto, and such waiver shall bind any third party
making a claim by or through one of the parties hereto, and (iv) under no
circumstances shall U.S. Bank be personally liable for the payment of any
indebtedness or expenses of the GSAA Home Equity Trust 2007-3, or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the GSAA Home Equity Trust 2007-3 under this
Assignment Agreement, the Trust Agreement or any related document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
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Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Trustee
By: /s/ Xxxxxxxx X'Xxxxx
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Name:
Title: VP
FIRST NATIONAL BANK OF NEVADA
By: /s/ Xxxxx X. Xxxxxx
Name:
Title: SVP
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxx Xxxx
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Name:
Title: VP
FNBN Step 2 AAR
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Sale Agreement
[On File with the Depositor]
